Allen v. City of Burlington, 45 Vt. 202

Allen v. City of Burlington

45 Vt. 202 | Vt. | 1873

The opinion of the court was delivered by

Redfield, J.

This action is assumpsit to recover the sum of $217.60 paid by the plaintiff to the city treasurer, for taxes assessed against him by the defendant city. The payment was made on the 14th of August, 1869 ; for which the plaintiff then took the treasurer’s receipt, which sets forth the several taxes, and the purposes for which they were assessed, as follows:

“ Burlington, Aug. 14,1869.

“ Received of Mr. Noah Allen, in full, city tax on grand list “ of 1869, $1.25, $123.41

*210“ High School Building tax, 20, 19.75

“ Highway tax, 20, ' 20.14

School tax, 45, 44.48

“ Sinking-fund tax, 10, 9.87 ”

With this memorandum on the back of said receipt:

“ Paid under protest, Aug. 14, 1869. N. Allen.”

On the 31st May, 1869, the legal voters of the city assembled, and voted to raise $1.25 on the dollar of the grand list for current expenses of the city government, and twenty cents on the dollar for the erection of a high-school building. And on the same day the board of aldermen made the assessment.

The warning for the meeting of voters of the city, was issued and published in accordance with the standing by-laws of the city, but not twelve days before the meeting ; and specified the purpose and business of the meeting in these words, viz : “ To vote upon the question of raising money by tax, or otherwise, to meet the accruing expenses of the city government, and for school purposes for the ensuing year.” Under this warning the meeting voted, “ That the wants of the city demand the immediate erection of a high-school building ” ; and not only voted a tax of twenty cents on the dollar of the grand list, but authorized the mayor to borrow on the credit of the city, a sum not exceeding fifteen thousand dollars, for the purpose of erecting said building.

I. It is claimed by the plaintiff that the assessment of the tax of $123.41, for current city expenses, is illegal, for the want of twelve days notice by the warning for the meeting which voted it. The charter provides that all warnings, &c., “ shall be issued by the mayor, and published in the manner designated in the by-laws of the city.” The ordinance of the city council, in regard to this provision of the charter, is as follows : “ All warnings for meetings referred to in the 17th section of the charter of this city, shall be published in each of the daily newspapers of this city three times successively, the last of which publications shall be not more than ten, nor less than six days prior to the meeting so called.”

It is insisted by the plaintiff that the provision in the General Statutes, requiring warnings to be posted “ at three public places,” *211&c., “at least twelve days before the time appointed for such meetings,” is not modified as to time by the charter; and that the charter substituted ■ publication for posting of the notice, merely. The charter provides, not only for the manner of notice, but for one of a different hind and character. The publication of such notice in all the daily newspapers, in the manner provided in the by-laws, would apparently be more full and ample notice to the voters than the posting of a notice, as provided for towns in the General Statutes ; and this springs from the character of the notice, and the means of publicity. Legal notices by publication, have, as a general rule, successive insertions ; .and if the twelve days i's required, it would follow that the last insertion should be “ at least twelve days ” before the meeting; for the several acts are entire, and but.one notice. Nor do we think the danger from delegating to the voters of the city the right to determine the sufficiency of the notice by which they shall be bound, so imminent and appalling as counsel apprehend. The voters of the city have every interest to require full notice, and by the charter, they may provide one satisfactory to themselves, and make it unalterable by any agency save their own. We think a fair construction of the charter, requires warnings to be signed by the mayor, and published ; but delegates to the city the right to fix by a standing by-law, the time and extent of such publications.

It is claimed that the warning gave no notice of a purpose to vote a tax, or borrow money, with which to erect a high-school building. The only business article in the warning is this: “ To vote upon the question of raising money by tax, or otherwise, to meet the accruing expenses of the city government, and for school purposes, for .the ensuing year.” “ School purppses ” could have no other meaning in that connection, without the perversion of language, than the ordinary and current expenses in sustaining the existing schools of the city. The location and construction of a costly building for a high-school, for the use of the citizens of the city of Burlington, could not be otherwise than of special interest and importance to the voters of the city. Yet the warning gave no notice of such a purpose. The legislature of this state have regarded the location of a school-house in school-dis*212tricts of so much importance as to require a two-thirds vote to fix the location. Gen. Stat. 155, § 44. The assessment of this tax, and the pledge of the credit of the city to the amount of $15,000, were done by one and the same resolution, and for authority, must stand alike. If that meeting could pledge the credit of the city fer $15,000, it could for $40,000, the alleged expense of the entire structure. The statute requires that the warnings shall “ set forth th& business to be done, and the subjects to be considered.” The purpose of the warning is notice, and should, at least, indicate to the voters the character of the “ business to be done,” and the “ subjects to be considered.” If notice to raise money “ for school purposes for the ensuing year,” would allow the city to vote money to build a high-school building, and pledge the credit of the city to borrow money for that purpose, it might vote money, or pledge its credit, to build or endow academies and colleges within its precincts, and if this be so, we see no reason why the other clause in the warning, viz., “ To raise money to meet the accruing expenses of the city government,” would not allow the city to vote money and pledge its credit to build gas-works and water-works, to any extent, and at any cost. We think, if a town or city would launch into new, projected enterprises, extraordinary in character, the “ business to be done,” or, at least, the “ subject to be considered,” should be named in the warning. The vote, therefore, assessing a tax of $19.75 for the “ high-school building,” was not authorized by the warning, and was illegal and void.

II. The “sinking-fund tax ” of ten per cent, on the grand, list is sought to be justified under the vote of March 19,1866. That purported to authorize the city council, annually thereafter, to assess a tax on the grand list, of ten per cent., to provide a sinking-fund, for the purpose of extinguishing the debt‘accruing from the construction of the aqueduct to provide water for the city. The only business article in the warning for the meeting that passed that vote, was in these words: “ To vote whether the city will authorize the city council to pledge the credit of the city to an amount not exceeding $150,000, payable in not less than twenty years, with interest at six per cent, per annum, to provide a supply of *213water for the use of the city.” The meeting passed a resolution authorizing the city council to pledge the credit of the city, in the the very language of the warning. When this resolution was ratified by vote, the specific “ business to be done,” had been done ; the whole “ business ” named in the warning had been finished; and the authority, under the warning, exhausted. The provision for the sinking-fund was not only not authorized by the warning} but was directly in conflict with the special provision jm it. The warning definitely provides that the proposed loan shall be payable in not less than twenty years. The vote undertakes to assess taxes to pay the loan within less than twenty years. If the meeting had authority to assess a tax of ten per cent., it could a greater, and sufficient to extinguish the whole debt within twenty years. The language of the warning being thus specific, did not authorize the resolution providing for the “ sinking-fund.”

There is another objection to this tax, which we think well taken. The statute, ch. 84, § 66, provides that all taxes voted by any town at any annual March meeting, or during that year, shall be assessed on the grand list of the same year ; and the sixty-seventh section makes a similar provision as to school-district and village taxes. This court have decided that a vote of a school district in March, 1870, assessing a tax on the grand list of 1869, was void. Capron v. Raistrick, 44 Vt. 515. In that case, Wheeler, J., says: “ The vote having been passed after the first day of March, 1870, could not lawfully be, and was not, a vote upon any grand list other than the one then to be completed on the 15th day of May following.” The evident aim and purpose of the several provisions of the statute, — and they are all consonant to that.end, —would seem to be to allow citizens to tax themselves, but neither their ancestors nor successors. It would indeed be competent for a town or city to create a debt, which should become payable in some future year, 'or by installments each succeeding year. But whether such debts shall be paid by taxation, or otherwise, is a matter to be determined by those upon whom the duty rests. We think the “ sinking-fund tax ” of $9.87, unwarranted and illegal.

III. Was the payment of these taxes, under the circumstances, a voluntary payment ? The court below have not so found *214as a matter of fact, and .we cannot do so as a matter of law. The tax-payer is required by law to pay his tax within one month and eight days after publication of notice by the treasurer that the tax-bill is in his hands for collection.; and if not paid within that time, five per cent, is added to the tax, a warrant issues, and cost ensues. We infer from the case as stated, that the term of grace had about expired, and that the plaintiff must elect either to pay the tax, or be subject to the penalty and costs. If the plaintiff was- constrained to pay the tax, to save his property from distress, and to avoid a penalty and costs, it was not a voluntary payment. Babcock v. Granville, 44 Vt. 326; Henry v. Chester, 15 Vt. 469. It is not necessary that the warrant should have been issued, and the levy instant. If he expected, and had a right to expect, that in due course the warrant would issue, and the collection be enforced, with costs; and that unless he complied with the one alternative, he must submit to the other ; and he paid because, otherwise, the other alternative would be upon him, with protest that' he paid because thus constrained, it is not such voluntary payment that he would be precluded from recovering back the taxes so paid, if they were illegally imposed.

The court have found that protest was distinctly made to th) treasurer, at the time of payment, and a memorandum of that fact made on the receipt, in the presence of the treasurer. The treasurer must have understood that th) taxes were not paid in the ordinary course, but that plaintiff insisted that the assessment was illegal, and, by the formal-notice, reserved the right, which otherwise would have been waived, to test the validity of the assessment, by an appropriate action.

The judgment of the county court is therefore reversed, and judgment that the plaintiff recover $29.62 (the amount of the “ high school building tax,” and the “sinking-fund tax”), and interest thereon from August 14th, 1869*, with costs.